In an adversarial system, the Judge will attach a lot of importance to the evidence given by a witness, both in writing and in person. The basic rule is ‘he who asserts, must prove’ and the standard of proof in family cases is the ordinary civil standard i.e. ‘on the balance of probabilities’.
It is often said that the Judge who sees and hears the witness give evidence has a significant advantage in being able to assess their credibility ‘on the spot’. Mostyn J commented in a speech at Bristol University in December 2014 about the craft of judging and the fallibility of memory (see paragraph 5):
If I were to ask you what was the key factor in finding facts in a trial you might reply “credibility”. Who does the judge believe? The primacy of the factor of credibility has an iconic, almost canonical, status. Thus Posner writes at page 123: “No legal catchphrase is more often repeated than that determinations by a trial judge whether to believe or disbelieve a witness can be overturned on appeal in only extraordinary circumstances. The reason is said to be the inestimable value, in assessing credibility, of seeing and hearing the witness rather than reading a transcript of his testimony, since the transcript eliminates clues to veracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expressions.”
However, given what is widely understood about the fallibility of memory, Mostyn J and many other judges and commentators have cast considerable doubt on this view that assessing the credibility of witness evidence in court is really going to help the Judge a great deal in determining where the truth can be found. Memories are notoriously susceptible to subsequent alteration by unconscious bias or ‘wishful thinking’. Our memories of what happened can change over time and harden into something very different from what actually happened.
The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. ‘Credibility’ is not the same as ‘demeanour’ which is concerned with whether or not a witness appears to be telling the truth.
Credibility deals with the following issues:
- is the witness a truthful or untruthful person?
- If truthful, is he telling something less than the truth on this issue
- if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction.
- If truthful and telling the truth as he sees it, can his memory be relied upon?
- Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?
The court considered the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431.
Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.
The importance of written contemporaneous evidence
Mostyn J referred approvingly in his speech of December 2014 to comments in the case of Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) (15 November 2013).
In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
Test witness evidence against objective and independent facts
The best way of testing witness credibility is likely to be to test their veracity by reference to objective facts which are independent of their testimony. This was considered by Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:
Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.
We are almost certainly going to see an increase in both audio and visual recordings of interactions between parents and professionals, given the increasing availability of cheap and reliable recording equipment. It may be that we will soon see reliance being placed first and foremost on such recordings; rather than the inherent fallibility of recalling memories.
Further reading
- See our discussions on recording in this post.
- This article on the fallibility of memory
- Civil Procedure back to basics 12: What is meant by witness credibility? Blog from Civil Litigation Brief.
“The reason is said to be the inestimable value, in assessing credibility, of seeing and hearing the witness rather than reading a transcript of his testimony, since the transcript eliminates clues to veracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expressions.” –
Should then all court proceedings be video recorded in case of appeal? Or if that is a step too far; should the recording of the hearing be automatically supplied on appeal, admittedly the appeal judge/judges would miss out on the body language but in my opinion it would crack two problems i.e the reasoning often applied that the original judge had the opportunity to hear the witnesses and the unreliability of transcripts.
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not;” As a parent, the problem I identify is that some of the documents placed before the court are inaccurate and therefore the judge is not considering objective facts but subjective biased documents, but because you are a parent for whom the stakes are very high the judge will prefer to believe the professionals.
Certainly recording of conversations meetings etc must be the way forward
I found this posting interesting as well , if Sarah hadn’t borrowed it I would have copied and pasted it as I thought it was right up Angelo’s street.
Lack of compliance with procedure does not automatically render a decision unlawful. If the CS ignore the requirements to take minutes of meetings and correct,written notes of conversations now, they get away with it.
Likewise,if they ignore any new requirements to tape record,they will get away with it.
Often the CS ignore procedures totally.They may choose not to involve the parents,not to involve teachers etc. They will not hold any meetings or conversations or talk to them.
This may be because they don’t want the real truth known.If there are no conversations,they can’t be recorded.
Regarding the taping of court hearings,what is the position currently? Are verbatim transcripts made by the stenographer available or not?
I am unclear about what the current situation is with regard to Social services not following ABE guidelines in the interviewing of vulnerable witnesses. Only today I have written some advice to a mother concerned that social Services turned up at the school without her knowledge or consent and informed her child that they would be going into care after the Final Hearing. This seems to be in contempt of court, as it assuming the judges decision. It also seems to be contrary to the Children Act as it distressed the child considerably and is tantamount to emotional abuse. However, because the school allowed the child to be seen alone (another cause for concern – shouldn’t the school be protecting their charges better from the predations of Social services ?) there is little possibility of the parent making any headway with a complaint about this very common abuse. Aren’t Social Services procedurally obliged to have an adult witness or a police officer present at interviews of this kind? They get away with it so often, and take the opportunity to lead vulnerable witnesses with disastrous consequences for the families.
I think you need to distinguish between interviewing someone as a SUSPECT and interviewing someone as a (potential) VICTIM. Procedural safeguards less important for latter as you are not trying to investigate a case against them.
The position is that the CS often hold their enquiries in conjunction with the Police CP squad.
There are strict procedures in place as to ABE interviews to safeguard the innocent.The CS abuse the procedures , often leading the Police astray too.
In one recent criminal case,the quality of the evidence was so poor, it was withdrawn before the case started and the parent acquitted of all charges.However,the family court does not automatically count evidence inadmissible even if it knows procedural safeguards were not followed.This means the system is open to the possibility of abuse.
Sarah confirms this below.
The problem is that the family courts aren’t set up to establish guilt of ‘ suspects’ and interviews are not really supposed to be held for that reason.Nobody is actually charged with anything.
The family court is a civil one which is set up to hear applications for protective orders ;its standards of evidence are lower and the protocol entitles it to give SW’s great latitude on account of their ‘difficult job’. It gives preference to professional evidence wrongly obtained or not.
I yesterday received minutes from my daughter’s LAC review, not only was I not informed that there was a LAC review, apparently I had not bothered to return the parent’s comment form. I had of course not received the form, but it is my word against theirs and I am just a parent which of course means I am of bad character and a liar. I was aware that A LAC review was due and had emailed both the IRO and the Social worker several weeks ago but received no reply. This nonsense has to stop and proper working practices put into place which reflect the gravity of severing of family ties.
That is really appalling Sam. Hope you’re going to make an official complaint.
Same just happened in another autistic child’s case in 2018.Nothing changes.Official complaints procedure corrupt?
LA dishonest?
Angelo So true
It should be illegal to snatch babies or young children from law abiding citizens.There should be no punishment without crime.Can anyone who is not a lawyer or a social worker (earning a living out of these outrages) seriously disagree with changing the law so as protect parents who keep the law???
Well so far the politicians also disagree. They are the only ones who can change the law – lawyers and social workers cannot change the law, they can only apply it. So maybe use your energies better and direct your anger to where it is needed.
We are not angry! We are baffled because OUR LAWYERS do not ensure we have a fair hearing.
QUOTE: Well yes. So it should. I should be married to George Clooney and not have to worry about how I will fund my retirement – but life is not fair is it?: UNQUOTE.
That comment was NOTHING to do with the fairness of court procedure. It was pointing out to you that there isn’t a big pot of magic money that we can spend to achieve all we would wish for in an ideal world.
If you are seriously suggesting that I do not work to ensure that my clients get a fair hearing, then either you provide evidence for that assertion or you do not return to this site, as you will not be welcome.
No, I was not attacking you personally,Sarah,I have time and again praised your openness and honesty.
You said that social workers and lawyers can only apply the law.My constant theme has been that hearings are not always scrupulously fair.
I quoted you because you accept that life isn’t always fair.You also appear to acknowledge that the Local Authority’s inability to fund support programmes plays a part in how the law is applied.Rather than keep families together with support, they are compelled to remove the children because it is cheaper! I feel your comment could not have made it any more plain to readers.You were totally honest,what more can we ask?
Readers,I would never ever attack Sarah and suggest she does not work for her clients.
I clear her of any malpractice at all.Indeed ,I would never make false (or true) assertions of any individual lawyer or social worker.That is unacceptable on any site.
What I object to is how lawyers and social workers ‘apply the law’. When support at home would be quite adequate,they remove children because it is less costly.
I hope that is clear to you all.I completely exonerate Sarah!
thanks very much for the exoneration.
Sarah,I particularly put in capitals ‘OUR LAWYERS’.I did not mean you personally.
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Oh god Josephs at it again – your comments are tedious in the extreme.
Yawn, yawn, yawn.
ANY chance you could tell us your motivation for peddling your conspiracy theory.
I do try to understand all facets of human behaviour, but have to confess to a complete inability of your motives, and those of Booker. I know the motives of the 3rd member of the “holy trinity” (thanks Sarah) John Hemming.
Sorry I bore you Kate ! [EDIT redacted. New comments rule: any comment which mentions ‘snouts in the trough’ shall be deleted, as I am now very tired of this phrase]
I am tired of social workers who mention ‘peddling conspiracy theories’. Please ban that phrase too Sarah.
Ian has repeatadly explained that there is no general conspiracy and I agree with him.
Ok, that’s fair. I will from henceforth ban any comment that is simply a tired cliche.
FWIW, my theory is that these men (because the most high profile ‘activists’ are all men) are motivated by their outrage that the State would dare interfere with the right of a ‘family’ (i.e. the man who ‘heads’ the family) to do as it wishes to all its members, even the most vulnerable.
Not all the issues they raise are without foundation of course, some of the points they make are valid and require further investigation. But, I firmly believe, at its heart their objections are based on the view that the ‘family’ should be inviolate (and I assume under a man’s control). This of course, ignores all the very well documented dangers of a family unit which becomes dysfunctional, dangerous and abusive and from which children require rescue.
It’s called COMPASSION Kate ! [REDACTED Edit, sorry forgot to say that the phrase ‘birds of a feather flock together’ is also now banned as it is almost as annoying as ‘snouts in the trough’ But if Ian can find some new phrases, I would be happy to publish his comments]
Hmm the hour is late – I meant ” a complete inability to understand your motives”
Thanks Kate . The problem I have is they don’t even play the complaints procedure straight. If I go through the complaints procedure they will not keep to the procedure and even at stage 3 will pull in two of their former employees to throw the decision. I have bitter experience of this already. What I basically need is a damn good lawyer to shake them up . I am dealing with very sick people,they actually use very similar tactics to my ex husband, making out I am the one in the wrong, when they are . I am not necessarily blaming the social workers on the ground, though they do seem to forget their code of conduct but senior management have form, if I can put it like that. I should think they are awful to work for.
Sarah Is it something I could go straight to judicial review for?
I think the answer to my own question is you have to use the complaints procedure first. It’s so frustrating, just trying to put the it in perspective and hoping for change for future generations.